R. SIVASUBRAMANIYAM vs TAMILNADU HOUSING BOARD

-THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.

THE complainant is An advocate practising in the High Court, Madras. In pursuance of an advertisement made by the opposite party Housing Board for sale by public auction of plot No. 830A in Annanagar, the complainant paid an Earnest Money Deposit of Rs. 1,000/- and participated in the public auction held on 23.8.93. THE upset price was Rs. 60,000/- per ground and the complainant was the highest bidder for the land at Rs. 1,35,000/- per ground. He immediately paid 15% of the total cost of the land amounting to Rs. 47360/-. But the complainant did not get any order of allotment. In November 1986, he found some persons were constructing house in the said plot and learnt that the Government have allotted this plot in 2 pieces to two very important persons namely the Doctor of the then Chief Minister and the Personal Secretary of the then Chief Minister at the rate of Rs. 60,000/- per ground. THE complainant filed W.P. 12295/86 on the file of the High Court of Madras for directing the opposite party to allot the plot to him and in WMP. 192211/86 to atleast allot an alternative plot and in WMP. 18744/86 to reserve an alternative plot. THE opposite party contended that there was no plot available in Annanagar. But on 17.2.87, the Government passed G.O. Ms. No. 175 allotting 40 grounds to 15 persons on the recommendation of the opposite party. THE Complainant filed W.P. 9285/87 challenging the allotment and WMP. 1313/87 and 13614/87 for interim injunctions restraining the Government from allotting or executing any sale deed or handing over possession. In WMP. 9286/87 and 9287/ 87, the complainant sought the quashing of G.O. Ms. No. 1358 dated 24.12.86 and G.O. Ms. No. 128 dt. 20.11.85 under which the original plot No. 830-A purchased by the complainant in the auction was bifurcated and allotted to 2 important persons. THEreafter the complainant came to know of an advertisement in the Hindu dated 7.11.87 made by the Housing Board for sale of some plots by auction. THE complainant filed WP. 11484/87 and WMP16802/87 and 16803/87 for directing the opposite party to reserve one plot to the complainant and for interim injunction restraining the Housing Board from conducting the auction. THE High Court was pleased to pass an order directing the Housing Board to reserve one plot preferred by the complainant measuring 2.5 grounds and also restraining the Housing Board for conducting the auction. Meanwhile the complainant came to know that the plot No. 431/B was vacant and issued a notice to the Housing Board to inform the High Court about the reservation of this plot. THE Housing Board falsely reported that this plot was earmarked for public park. This report of the Housing board turned out to be false as the Housing Board has subsequently called for tender for constructing residential flats in this plot 431/B in THE Hindu dated 3.12.87. When all the writ petitions and MPs. were posted for final hearing, the Housing Board by its letter dated 24.5.88 offered to allot to the complainant plot No. 2973 or R 42/B. THE complainant accepted plot No. 2973 and it was allotted to him on the condition that he should withdrew all the writ petitions before the High Court and accordingly the complainant withdrew tiie writ petitions on 4.10.88. This plot was allotted to the complainant by G.O. Ms. No. 1161 dt .26.8.88 and by letter of allotment No. P.9/9511/88 dated 27.10.88, but the complainant found that T.S. No. Block 8 of which plot No. 2973 formed a part was Government poramboke land, that it was not handed over to the Housing Board and that it was occupied by slum dwellers. THE complainant wrote to the Executive Engineer and Administrative Officer of the Housing Board but he refused to intervene and give physical possession of the plot. Meanwhile on Arjunan and 29 others filed W.P. 1233/91 on the file of the High Court against the Government, the Housing Board, the Collector of Madras and the Executive Engineer of the Housing Board claiming that they were in the possession of S.No. T.S. No.1 Block 8. Some people who were in possession also filed O.S. 4120/90 on the file of the City Civil Court Madras and obtained an interim injunction in IA. 4773/90 restraining the Government from interfering with their possession. THE Revenue Authorities attempted to remove the encroachment in the above land, but their attempt was stopped by the order of the City Civil Court. Finally, the Government passed an order empowering the Housing Board to enter upon the land and thus the Housing Board by virtue of that order became the owner of the land from 27.6.90. It was then divided into 16 plots and the lay out scheme was approved by MMDA only 17.1.91. During March 1991, the Housing Board with the assistance of Revenue Authorities and with massive police force removed the encroachments and took possession. All the allottees were able to take possession of the respective plots only in the Month of April, May and June 1991 and constructed the compound wall. THE complainant took possession in June 1991 of plot No. 2973. In the meanwhile, the complainant has paid the total sum of Rs. 1,16,420/- including the amount paid for the plot which he had taken in auction in 1990. Alleging gross deficiency of service and grave negligence on the part of the opposite party Housing Board, the complainant has come forward with this complaint claiming interest of Rs. 1,64,934/- on the amount paid at 18% p.a. from the date of each payment uptojune 1991 when he took actual possession. He has also claimed compensation in the sum of Rs. 4 lakhs for mental agony and another sum of Rs. 4 lakhs towards financial loss including the additional expenditure to be incurred to put up the building at this distance of time. The claim is resisted by the opposite party. It is admitted that in the auction held on 23.8.83, the complainant was the highest bidder for Rs. 135,000/- per ground for plot No. 830-A and immediately paid 15% of the total cost amounting Rs. 47,360/-. The auction has to be confirmed by the Chairman who found the price fixed was very low and ordered reauction. Subsequently, the Government subdivided this plot into two as plot Nos. 830 Al and 830A2 and allotted them to two persons. The complainant knew all the facts and he has not applied for the refund of the initial deposit in stead he filed W.P. 12295/86 and asked for an alternative plot in W.M.P. 19211/86. The allotment of this plot to two persons was ordered by the Government in G.O. Ms. No. l75 (Hg.& Ur. Department). They are in the exercise of power under the discretionary quota of the Government and not arbitrary. The Tamilnadu Housing Board has not adopted unfair, unethical or discriminatory attitude. During the pendency of these proceedings in the High Court, the opposite party offered to allot plot No. 2973 or R 42B to the complainant who accepted the allotment of plot No. 2973 in Annanagar measuring 2 grounds at Rs. 92,000/- per ground. His letter of acceptance is dated 9.11.88. The initial deposit made by the complainant at the time of the auction had been adjusted. It is averred by the opposite party that this plot was physically handed over to the complainant on 3.2.89. The allegation that the complainant was not able to take possession of the plot is denied. It is not true that the actual possession of the plot was handed over to the complainant only in June 1991. It is contended that this plot was in the possession of the Government and in 1990 there was only a revised lay out under consideration. The allegation of the complainant that the value of the plot allotted to him at Rs. 92,000/- is high is also denied, the claim for fixing the value at Rs. 60,000/- cannot be accepted. It is also stated that the complainant took possession of the plot on 3.2.89. It is contended that the complainant is not entitled to interest on the amount paid him prior to taking of possession. The claim is barred by time. The compensation claimed is also denied and disputed

Exh. A1 to A 64 and B1 to B10 are marked by consent. The complainant has filed a proof affidavit. Mr. S. Sooryan, Secretary and Personel Officer of Tamilnadu Housing Board has also filed a proof affidavit on behalf of the opposite party. No oral evidence has been let in.

THE points that arise for determination are: (1) Whether there has been any deficiency of service or negligence on the part of the opposite party? (2) To what compensation, if any, is the complainant entitled? (4) Whether the claim is barred by time

Point No. 1: Exh. Al is the advertisement made by the opposite party, Tamilnadu Housing Board for the sale by public auction of a residential flat bearing No. 830-A measuring 2 grounds and 812 sq.ft. and the commercial plot bearing No. 842 measuring 1 ground and 1096 sq.ft. The auction was to be held on 23.8.83. The complainant who is a member of the Bar of the High Court, Madras has paid the Earnest Money Deposit of Rs. 1000 by cheque under Exh. A2 and participated in the auction. He was the highest bidder for the sum of Rs. 1,35,000/- per ground and out of the total sale consideration of the plot, he has immediately paid on the date of the auction 15% of the amount of Rs. 47,360/- but the complainant did not receive any communication from the Housing Board regarding the allotment. On coming to know that somebody was putting up the construction of the building in the plot, the complainant filed W.P. 12295/86 on the file of the High Court, Madras for order directing the opposite party to allot the plot No. 830A to him. (vide Exh. A7 & A8). He also filed WMP.18744/86 and 19211/86 for directing the opposite party to reserve a plot to the complainant and to allot another plot alternatively. From the counter filed by the opposite party in the said Writ petition the complainant came to know that the Government bifurcated the plot into two 830 A/and as plots 830A2 and by G.O.Ms. No.1281 dated 28.11.85 and G.O.Ms. No. 1358 dt. 13.12.85 have allotted the plots to one Dr. I. Seetharam Naidu and Mr. V. Kandasamy. The complainant also learnt that on 17.2.87 the Government had passed G.O. Ms. No. 175 allotting about 40 grounds to 15 other interested persons (vide Exh. A13). The complainant filed W.P. 9285/87 challenging this allotment under G.O. Ms. No. 175 and WMP. 13613/87 and 13614/87 for interim injunctions (vide Exh. A14 and A17). The complainant also filed W.P. 9286/87 and 9287/87 challenging G.O. Ms. No. 1281 dt. 28.11.85 and G.O. Ms. No. 1358 dated 13.12.85 under which plot No. 830A which was auctioned to the complainant was bifurcated and allotted to Dr. Sitaram Naidu and Mr. V. Kandasamy and for interim injunc tions in W.P.13615/87 and W.P 13617/87. They are Exh. A18.

UNDER the Madras State Housing Board Act, the Government have a discretionary quota for allotment of land and houses to persons of their choice. But this discretion has been exercised not arbitrarily but on sound principles of justice, equity and good conscience. Plot No. 830A Annanagar has been advertised for sale in public auction and in the auction held on 23.8.83, the complainant was the successful bidder for Rs. 1,35,000/- per ground. Without allotting this plot to the complainant, the Govt, have thought fit to bifurcate it and allotted them to two persons of their choice at Rs 60,000/- per ground. This is a clear case of arbitrary exercise of the discretionary power in contemptuous violation of the Rule of Law, which is the corner stone of our Constitution. We are sure the High Court of Madras would have come down heavily on the Government but for the fact that all these writ petitions were withdrawn by the complainant on the allotment of an alternate plot with which we shall deal later. During the pendency of W.P. 12295/ 86 the Government have passed G.O. Ms. No. 175 dated 17.2.87 for allotment of 40 grounds to 15 persons as recommended by the Housing Board under Exh. A13. The complainant has immediately filed W.P. 9285/87 challenging the allotment and WMP. 13613/87 and 13614/ 87 for interim injunctions (vide Exh. A14 and A17). During the pendency of this W.P. an advertisement has been made in The Hindu dated 7.11.87 by the opposite party, Housing Board for sale of some plots by auction. The complainant filed W.P.11484/87 for restraining the Housing Board from selling these plots till an alternative plot is allotted to him and in WMP. 16802/87 in the said W.P., he has asked for reservation of one plot and in WMP.16803/ 87 he has prayed for interim injunction. The High Court was pleased to allow these two WMPs (vide Exh. A19 A21). No action was taken by the Housing Board. Meanwhile, the complainant came to know that plot No.431 /B was vacant and wrote to the Housing Board under Exh. A22 to reserve the plot for him and informed the High Court. The Housing Board informed the High Court that this plot was earmarked for public park. The falsity of this representation of the Housing Board is exposed by the fact that it has subsequently called for tender for constructing residential flats in that plot in the advertisement made in The Hindu dated 3.12.86 under Exh. A24. The more glaring instances of mis-representation can hardly be imagined. When all these WPs. and WMPs were posted for final hearing, the opposite party Housing Board wrote to the complainant under Exh. A25 letter dated 24.5.85 offering him to allot plot No. 2973 or R42/B.The complainant agreed to accept plot No. 2973 measuring 2 grounds and he was asked to accept the allotment on condition that he should withdrew all the writ petitions. Exh. A28 is the order of allotment of plot No. 2973 to the complainant and Exh. A27 is the order of the High Court dismissing the Writ petitions as withdrawn, with liberty to the petitioner to file fresh W.P. This was not the end of the complainant''s woes.

THE complainant learnt to his dismay that TS.No.l Block No.8 of which plot No. 2973 formed a part was puramboke land and was occupied by slum dwellers. THE Housing Board has immediately informed there about under Exh. A31 dated 2.3.89. But the opposite party was helpless. It approached the Revenue Authorities who took steps to vacate the encroachers. Meanwhile one Arjunan and 25 others filed W.P.1233/91 on the file of the High Court Madras against the State of Tamilnadu, the Chairman, Tamilnadu Housing Board, the Collector of Madras and the Executive Engineer of the Housing Board for restraining them from interfering with their possession. Exh. A32 is the affidavit in the writ petition. A suit has also been filed by some others in O.S. 2026/90 on the file of City Civil Court restraining the Housing Board from interfering with their possession and enjoyment of the land in TS. No. 1 Block No. 8 and in I. A. 4120/90 an interim injuction is said to have been given. It was clear that the entire land in T.S. No. 1 Block No. 8 was Government Purampoke land under the occupation of encroachers and the Housing Board was not in possession thereof. Exh. A42 to A47 communications would clearly establish that the entire survey number had been in the possession of encroachers and the Housing Board had never got possession from the Revenue Department. Without getting possession of the land, the Housing Board has prepared a scheme and allotted lands to various allottees including the complainant. Finally in March 1991, the Housing Board with the assistance of the Revenue Authorities and a Massive Police Force have vacated all encroachers and taken possession. According to the complainant his plot was physically handed over to him only in June 1991. It is strenuously contended in the counter statement filed by the opposite party that the possession of this plot was handed over to the complainant on 3.2.89 and reliance is placed under Exh. B9. Exh. B9 is the allotment order which contains the terms of allotment and a sketch. Exh. B10 is the printed form in which the date of delivery is mentioned as 3.2.89 and signed by the complainant. But it is futile on the part of the opposite party to contend that actual physical possession was handed over to the complainant under Exh. B10 dated 3.2.89. W.P. 1233/91 is the writ petition filed by Arjunan and 29 others against the Chairman, Tamilnadu Housing Board and Executive Engineer of the Tamilnadu Housing Board restraining them from interfering with their possession in S.No. T.S. No. 1 Block No. 8 allotted to the complainant and others. In the said writ petition, the Chairman, Tamilnadu Housing Board, and Execuive Engineer have filed a Review Petition No. 7/91 which is marked as Exh. A38. In that Review Petition it is stated that encroachments were removed by the Revenue Authorities as per the Provision of law and vacant possession was handed over to the petitioner (the Chairman and the Executive Engineer of the Housing Board) on 27.6.90. When it is the admitted case of the Chairman and the Executive Engineer in Exh. A38 that the Revenue Authorities gave possession of this land only on 27.6.90 how could they have delivered possession of the plot to the complainant on 3.2.89.? Exh. A42 dated 23.5.90 is the letter from Collector of Madras to the Chairman of the Housing Board wherein it is stated that the Housing Board has not taken any steps to prevent the encroachment. Exh. A43 is the letter dated 26.6.90 from the Assistant Secretary, to the Chairman & Managing Direction of Tamilnadu Housing Board, to the Executive Engineer and Administrative Officer asking him. to state that the action taken to vacate the encroachment. Exh. A44 is the letter dt. 13.7.90 from Executive Engineer and Administrative Officer of the opposite party to the Secretary and Personal Officer, Tamilnadu Housing Board where it has stated that the S.No. TS. No. 1 Block. 8 has been cleared of the encroachment by the Revenue Department on 27.6.90 and the land has yet to be handed over to the Housing Board. Exh. A45 is the letter from the Executive Engineer and Administrative Officer to the Collector of Madras dt. 7.8.90 wherein it is stated that the encroachments were vacated by Tahsildar on 27.6.90. Exh. A46 (21.8.90) is the letter of Chairman and Managing Director of the Tamilnadu Housing Board to the Collector of Madras informing him that the land is yet to be handed over to the Housing Board and requesting the collecter to alienate the land is favour of the Housing Board. It is also signifycant that the lay out scheme has been approved by MMDA only on 17.1.91 under Exh. A48. In the light of these un-impeachable documents it is frivolous on the part of the opposite party to contend that the actual physical possession of plot No. 2973 was handed over to the complainant on 3.2.89 under Exh. B2. It seems that even after the encroachments were removed on 27.6.90 once again the trespassers have encroached upon the land and occupied it as is seen from Exh. A38 Review Petition filed by the Chairman and the Executive Engineer in W.P.1233/91 before the High Court. It is admitted therein that the encroachers have attempted to put up the shed on 19.2.91 on the strength of the order passed by the High Court in W.P.1233/91. In the counter affidavit filed by Mr. Arjunan and 29 others to the Review Application under Exh. A39 he denies that they were vacated on 27.6.90 and claims that they have continued in possession of the entire S.No. THEre is therefore considerable force in the contention advanced by the learned Counsel of the complainant that it was only in March 1991 the Housing Board authorities with the assistance of the Revenue Authorities and Massive Force police, with heavy manpower removed and vacated all encroachments. It is also significant to note that under Exh. A57 letter dated 26.3.91 the Executive Engineer of the Housing Board asked the complainant to start construction and safeguard the same. THE contention of the complainant that he took actual possession in June 1991 appears to be reasonable.

THE facts related above would show that there has been gross deficiency of service and negligence on the part of the opposite party from the top to the bottom. THE point is found against the opposite party. Point No. 2: From August 1983 when the complainant took in auction plot No. 830A till June 1991 when the complainant took possession of the alternatie plot No. 2973, he has been subjected to grave torture mentally and financially. He had to file as many as four Writ Petitions and innumerable WMPs to agitate his claim. After much wrangle he has been allotted a plot bearing No. 2973 in a land which belonged to the Government and which had been ercroached by the slum dwellers and it has not actually been handed over to the Housing Board. These encroachers have filed writ and suit against the Government and the Housing Board in W.P.1233/91 and O.S. 2726/90 and only during the pendency of these proceedings, the encroachers have been physically removed and the possession has been handed over to the complainant and other allottees. The complainant has in the meanwhile paid Rs. 1,16,420/- on various dates and he claims interest thereon at 18% from the date of each payment till delivery of possession in June 1991. This claim is just, fair and reasonable. The interest is calculated at page 21 of the complaint and the total interest alone comes to Rs. 1,64,934/-. The correctness of the calculation is not disputed before us. The complainant is entitled to this amount.

The complainant claims that he has been put to much hardship as he has to file several writ petitions but for which he could not allot an alternative plot. It is also his contention that the cost of construction has since skyrocketed. We can easily imagine the mental agony and torture that he must have suffered all these 9 years. Taking all these factors into consideration we find that a sum of Rs.1 lakh as compensation will be just and proper. The complainant is also entitled to costs.

POINT No. 3: The plea of limitation is raised in the counter statement. According to the complainant he took possession only in June 1991 and the cause of action arises only from June 91 and this complaint is filed within 3 years there from in April 1993. The claim is, therefore, well in time. Advisedly, therefore, the learned Counsel for the complainant did not advance any argument in this aspect. In the result, we order as follows:- (1) The opposite party shall pay to the complainant Rs. 1,64,934/- by way of interest on the amounts paid by him. (2) The opposite party shall also pay a sum of Rs. 1 lakh as compensation to the complainants towards mental pain and agony. (3) The opposite party shall also pay a sum of Rs. 3,000/- towards costs to the complainant.

Complaint allowed with costs.